(concurring in part and dissenting in part).
The majority opinion is a plethora of words, but does not decide anything except “Red Fox has not met her burden of proof.” Therefore, she loses. I believe she never had a chance — the trial court granted summary judgment against her for the wrong reason, holding the tribal court did not have personal jurisdiction over Het-tich. I would reverse the circuit court’s determination that the tribal court lacked personal jurisdiction over Hettich, remand to the circuit court the issue of the tribal court’s subject matter jurisdiction and affirm the circuit court’s finding Red Fox has no cause of action against Northwest.
I. FAILURE TO RECOGNIZE TRIBAL COURT JUDGMENT UNDER PRINCIPLE OF COMITY.
It is “well settled” in South Dakota that tribal court orders should be recognized in state courts under the principle of comity. Redwing, 429 N.W.2d at 50 (citing Circle Bear, 370 N.W.2d 737). SDCL 1-1-25 (1991 Supp.) lists five requirements which must be satisfied before a state court can recognize a tribal court order or judgment. Before a tribal court judgment may be recognized as a matter of comity, among other things, the tribal court must have had “jurisdiction over both the subject matter and the parties.” SDCL l-l-25(l)(a); See also Circle Bear, 370 N.W.2d at 740 *649(citing Hilton v. Guyot, 159 U.S. 113, 202-03, 16 S.Ct. 139, 158, 40 L.Ed. 95, 122 (1894)); In re Marriage of Red Fox, 23 Or.App. 393, 542 P.2d 918, 921 (1975). Despite his residence within the external boundaries of the reservation, Hettich argued the tribal court had no personal jurisdiction over him. The circuit court determined it could not assert personal jurisdiction over Hettich although it had subject matter jurisdiction over the cause of action against him. The circuit court then concluded the tribal court judgment was not entitled to recognition either under full faith and credit or comity principles.
A. Personal Jurisdiction.
Jurisdictional challenges are reviewed by this court de novo. See Vandermay, 478 N.W.2d at 290; Spotted Horse, 462 N.W.2d at 465. This court held in Defender that the same due process standard which governs state court assertions of jurisdiction over nonresident defendants applies to tribal courts. Defender, 435 N.W.2d at 720 n. 2. “Both components of due process — notice and minimum contacts — must be satisfied before a court may properly exercise personal jurisdiction over a party.” Id. at 720 (citing International Shoe, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95). The standard for determining whether the assertion of jurisdiction comports with due process was set forth by the United States Supreme Court as follows:
The existence of personal jurisdiction ... depends upon the presence of reasonable notice to the defendant that an action has been brought ... and a sufficient connection between the defendant and the forum State to make it fair to require defense of the action in the forum.
Id. (quoting Kulko, 436 U.S. at 91, 98 S.Ct. at 1696, 56 L.Ed.2d at 141).
1. Reasonable Notice.
“[NJotiee [must be] reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). Hettich was served notice of the tribal court proceeding via certified mail. This type of service is permitted by the Standing Rock Code, Title II, Section 102(b)(4) as it is under the Federal Rules of Civil Procedure. Fed.R.Civ.P. 4(c)(2)(C)(ii) & (D). Cf. Wells, 451 N.W.2d at 403-404 (notice by mail insufficient where tribal code required personal service). Hettich acknowledged in his answer that he received notice of the claim. Therefore the reasonable notice requirement was met.
2. Minimum Contacts.
The “minimum contacts” standard has been most recently addressed by the United States Supreme Court in Burnham v. Superior Court of California, 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990). The Burnham Court held a California court could, consistent with due process, assert personal jurisdiction over a New Jersey resident who was served with process while visiting California for reasons unrelated to the suit. “Among the most firmly established principles of personal jurisdiction in American tradition is that the courts of a [sjtate have jurisdiction over nonresidents who are physically present in the [sjtate.” Id. at 610, 110 S.Ct. at 2110, 109 L.Ed.2d at 639.
In the case before us, Hettich is a resident of McLaughlin within the exterior boundaries of the Standing Rock Sioux Indian Reservation. Thus, he was physically present within the reservation. It is beyond cavil that governments have personal jurisdiction over those who reside within their territory. Pennoyer v. Neff, 95 U.S. 714, 724, 24 L.Ed. 565, 569 (1877), overruled on other grounds, Shaffer v. Heitner, 433 U.S. 186, 212, 97 S.Ct. 2569, 2583, 53 L.Ed.2d 683, 702 (1977). See also Burnham, 495 U.S. at 611, 110 S.Ct. at 2110-11, 109 L.Ed.2d at 639-40.
I believe the tribal court could, consistent with due process, assert personal jurisdiction over Hettich. I would reverse the circuit court’s determination that the tribal court lacked personal jurisdiction over Het-tich.
*650B. Subject Matter Jurisdiction.
Based entirely upon Rosebud, in a very brief memorandum opinion, the circuit court concluded the tribal court had subject matter jurisdiction over the cause of action. Rosebud Sioux Tribe v. State of S.D., 900 F.2d 1164 (8th Cir.1990). Rosebud purported to hold that South Dakota failed to validly assume criminal or civil jurisdiction over reservation highways. Rosebud, 900 F.2d at 1174. The precise issue before the court, however, was whether the State had jurisdiction over Indians on reservation highways. Vandermay, 478 N.W.2d at 290. Here, the court is concerned with whether the tribal court had jurisdiction over a non-Indian. Thus, Rosebud is in-apposite.
In deciding whether a tribal court has subject matter jurisdiction, I agree with Professor Pommersheim that the first step in the analysis must be to decide whether federal Indian law prevents the tribal court from litigating a dispute between an Indian plaintiff and a non-Indian defendant where an alleged tort occurs in Indian country. Pommersheim, supra at 336. Accord National Farmers Union, 471 U.S. at 852, 105 S.Ct. at 2451-52, 85 L.Ed.2d at 824-25. “Indian tribes have long been recognized as sovereign entities, ‘possessing attributes of sovereignty over both their members and their territory]!]’ ” Babbitt Ford, 710 F.2d at 591 (quoting Wheeler, 435 U.S. at 323, 98 S.Ct. at 1086, 55 L.Ed.2d at 312). See also Circle Bear, 370 N.W.2d at 740-41. Tribal authority is inherent in the tribe’s retained sovereignty; it does not arise by delegation from the federal government. Wheeler, 435 U.S. at 328, 98 S.Ct. at 1088-89, 55 L.Ed.2d at 315; Sanders v. Robinson, 864 F.2d 630, 632 (9th Cir.1988), cert. denied, 490 U.S. 1110, 109 S.Ct. 3165, 104 L.Ed.2d 1028 (1989); Circle Bear, 370 N.W.2d at 740. “Because the Tribe retains all inherent attributes of sovereignty that have not been divested by the Federal Government, the proper inference from silence ... is that the sovereign power ... remains intact.” Iowa Mutual, 480 U.S. at 18, 107 S.Ct. at 977-78, 94 L.Ed.2d at 21 (quoting Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 149 n. 14, 102 S.Ct. 894, 907 n. 14, 71 L.Ed.2d 21, 37 n. 14 (1982)).
“Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty. Civil jurisdiction over such activities presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute.” Iowa Mutual, 480 U.S. at 18, 107 S.Ct. at 977, 94 L.Ed.2d at 21 (citations omitted) (holding Congress’ passage of the diversity statute, 28 U.S.C. § 1332, did not impair tribal sovereignty). Accord Blue Legs v. B.I.A., 867 F.2d 1094, 1097 (8th Cir.1989); Sage v. Sicangu Oyate Ho, 473 N.W.2d at 482.1 Tribal sovereignty is not absolute, however. It is subject to limitation by specific treaty provisions, acts of Congress, application of the Constitution, or by implication due to the tribe’s dependent status. Babbitt Ford, 710 F.2d at 591. Civil jurisdiction has not been restricted by Congress to the extent criminal jurisdiction has. Iowa Mutual, 480 U.S. at 15, 107 S.Ct. at 976, 94 L.Ed.2d at 19; National Farmers Union, 471 U.S. at 854-55 nn. 16 & 17, 105 S.Ct. at 2453, 85 L.Ed.2d at 826. However, “[t]he areas in which implicit divestiture of sovereignty has ... occurred are those involving the relations between an Indian tribe and nonmembers of the tribe.” National Farmers Union, at 852 n. 14, 105 S.Ct. at 2452, 85 L.Ed.2d at 825 (quoting Wheeler, 435 U.S. *651at 323-26, 98 S.Ct. at 1085-88, 55 L.Ed.2d at 312-15).
Thus, in Montana, the Supreme Court stated:
[The] exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.... [Thus,] inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe. To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe, (citations omitted).2
Montana, 450 U.S. at 564-66, 101 S.Ct. at 1258, 67 L.Ed.2d at 509-11.
In Brendale, Justice White joined by three other justices in a plurality opinion stated, “[t]he inquiry ... becomes whether and to what extent the tribe has a protecta-ble interest in what activities are taking place on fee land within the reservation and, if it has such an interest, how it may be protected.” Brendale, 492 U.S. at 430, 109 S.Ct. at 3008, 106 L.Ed.2d at 363.
The concept of ‘protectible interest’ to which Justice White’s opinion in the [Brendale ] case referred, grew out of a long line of cases exploring the very narrow powers reserved to tribes over the conduct of non-Indians within their reservations. Even though a tribe’s ‘inherent sovereign powers ... do not extend to the activities of nonmembers, ... [a] tribe may ... retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.’
County of Yakima v. Yakima Indian Nation, — U.S.-,-, 112 S.Ct. 683, 692, 116 L.Ed.2d 687, 703 (1992) (emphasis changed) (citations omitted).
I have found only two cases determining whether a tort committed by a non-Indian against an Indian on the reservation has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Both cases held in the negative, although neither case has any precedential value here. National Farmers Union Ins. Co. v. Crow Tribe of Indians, 560 F.Supp. 213, 216-17 (D.Mont. 1983); Swift, 546 F.Supp. at 1193.
[T]he existence and extent of a tribal court’s jurisdiction will require a careful examination of tribal sovereignty, the extent to which the sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions.
National Farmers Union, 471 U.S. at 855-56, 105 S.Ct. at 2453-54, 85 L.Ed.2d at 827. Accord Blue Legs, 867 F.2d at 1097-98. This examination should be conducted in the first instance in the tribal court itself. Id. Accord Iowa Mutual, 480 U.S. at 19, 107 S.Ct. at 978, 94 L.Ed.2d at 22. This court, of course, cannot remand to the tribal court to make this examination. Nor, given the current state of the record, can we make the determination of whether jurisdiction is proper. This case was dis*652missed on a motion for summary judgment — a trial never took place. Therefore, each party should be given the opportunity to present evidence and authorities relative to subject matter jurisdiction.3 Thus, I would remand to the circuit court to redetermine the issue of subject matter jurisdiction.4 This important issue deserves careful consideration and analysis.
II.
Northwest was not a party to the proceedings in tribal court. In the circuit court proceeding, Red Pox made Northwest a party, claiming attorney fees pursuant to SDCL 58-12-3 (1990) based on Northwest’s refusal “to pay [the tribal court] judgment in violation of its policy covering ... Het-tich.” The circuit court ruled that Northwest was entitled to summary judgment as a matter of law on Red Fox’s claim that Northwest’s refusal to pay the tribal court judgment was “vexatious and without” reasonable cause. The court concluded a third party “does not have a right of action against an insurance carrier for bad faith.”
SDCL 58-12-3 provides in pertinent part:
In all actions ... commenced against any ... insurance company ... on any policy or certificate of any ... kind of insurance, if it appears from the evidence that such company ... has refused to pay the full amount of such loss, and that such refusal is vexatious or without reasonable cause the [court] shall, if judgment or an award is rendered for plaintiff, allow the plaintiff a reasonable sum as an attorney’s fee....
(Emphasis added). Insurance is “a contract whereby one undertakes to indemnify another or to pay or provide a specified or determinable amount or benefit upon determinable contingencies[.]” SDCL 58-1-2(10) (1990) (emphasis supplied).
Red Fox relies on several South Dakota cases in her brief. However, those cases do not support her argument. Most of the cited cases involve suits by an insured against the insurer. One involves a garnishment action brought by a judgment creditor after the defendant failed to satisfy the judgment, Bruins v. Anderson, 73 S.D. 620, 47 N.W.2d 493 (1951).5 One case cited by Red Fox is fatal to her claim.
In Crabb v. National Indemnity Co., 87 S.D. 222, 205 N.W.2d 633, 63 A.L.R.3d 715 (1973), an insured assigned his claim against his insurance company for wrongful refusal to settle within policy limits to the plaintiff/judgment creditor. This court held the creditor could not recover attorney’s fees via SDCL 58-12-3, reasoning the cause of action was “not an action against an insurance company on a policy of insurance within the contemplation of our statute.” Id. 205 N.W.2d at 639. The court noted the gist of the action was tortious in nature, for wrongful refusal to settle within the policy limits of the insured, not contractual as contemplated by the statute. Here, Red Fox has not received an assignment of Hettich’s cause of action, if Het-tich ever had one. Thus, she cannot bring a cause of action against Northwest which is contractual in nature. I believe the circuit court was correct in concluding as a matter of law Red Fox could not recover attorney’s fees via SDCL 58-12-3.
I would reverse the circuit court’s determination that the tribal court lacked personal jurisdiction over Hettich, remand to the circuit court the issue of the tribal court’s subject matter jurisdiction and affirm the circuit court’s finding Red Fox has no cause of action against Northwest. In the event subject matter, jurisdiction is found, the circuit court should determine *653whether the other factors set out in SDCL 1-1-25 have been satisfied.
. See also White Mountain Apache Tribe v. Smith Plumbing Co., 856 F.2d 1301, 1305 (9th Cir.1988); Wellman v. Chevron U.S.A., Inc., 815 F.2d 577, 578 (9th Cir.1987). Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians. Santa Clara Pueblo, 436 U.S. at 65, 98 S.Ct. at 1680, 56 L.Ed.2d at 119. The Ninth Circuit has relied on Iowa Mutual and Santa Clara Pueblo in conjunction with Montana (discussed infra) to hold a tribal court can exercise at least concurrent jurisdiction over a non-Indian husband who was a defendant in a divorce and custody proceeding where he, his wife, and all of the children resided on the reservation during the marriage. Sanders, 864 F.2d 630.
. I recognize the paradoxical nature of the discussion above. It results from the Montana Court having "strangely reversed the otherwise consistent presumption in favor of inherent tribal sovereignty over reservation lands Brendale v. Confederated Tribes of the Yakima Nation, 492 U.S. 408, 456-57, 109 S.Ct. 2994, 3021-22, 106 L.Ed.2d 343, 379-80 (1989) (Black-mun, J., concurring in part and dissenting in part) (Montana should be read to recognize "that tribes may regulate the on-reservation conduct of non-Indians whenever a significant tribal interest is threatened or directly effected.”).
. This case may eventually be decided by the United States Supreme Court. I believe it is imperative a complete record should be made for that eventuality.
. I agree the second step of a court's analysis in determining whether a tribal court has subject matter jurisdiction involves an examination of whether the tribal court has jurisdiction as a matter of tribal law. F. Pommersheim, supra, at 337. The Standing Rock Code, Title I, § 107, provides for civil jurisdiction where a member of the Tribe is a party to the action.
.Red Fox also relies on Loy v. Bunderson, 107 Wis.2d 400, 320 N.W.2d 175 (Wis.1982). That case involved a state statute which permitted a judgment creditor to sue an insurance company directly. SDCL 58-12-3 contains no such provision.